(a) use in commerce any reproduction, counterfeit, copy, or
colorable imitation of a registered mark in connection with the sale,
offering for sale, distribution, or advertising of any goods or services
on or in connection with which such use is likely to cause confusion, or
to cause mistake, or to deceive; or

(b) reproduce, counterfeit, copy, or colorably imitate a
registered mark and apply such reproduction, counterfeit, copy, or
colorable imitation to labels, signs, prints, packages, wrappers,
receptacles or advertisements intended to be used in commerce upon or in
connection with the sale, offering for sale, distribution, or
advertising of goods or services on or in connection with which such use
is likely to cause confusion, or to cause mistake, or to deceive, shall
be liable in a civil action by the registrant for the remedies
hereinafter provided. Under subsection (b) hereof, the registrant shall
not be entitled to recover profits or damages unless the acts have been
committed with knowledge that such imitation is intended to be used to
cause confusion, or to cause mistake, or to deceive.

As used in this subsection, (FOOTNOTE 1) the term "any person"
includes any State, any instrumentality of a State, and any officer or
employee of a State or instrumentality of a State acting in his or her
official capacity. Any State, and any such instrumentality, officer, or
employee, shall be subject to the provisions of this chapter in the same
manner and to the same extent as any nongovernmental entity.

(2) Notwithstanding any other provision of this chapter, the
remedies given to the owner of a right infringed under this chapter or
to a person bringing an action under section 1125(a) of this title shall
be limited as follows:

(A) Where an infringer or violator is engaged solely in the
business of printing the mark or violating matter for others and
establishes that he or she was an innocent infringer or innocent
violator, the owner of the right infringed or person bringing the action
under section 1125(a) of this title shall be entitled as against such
infringer or violator only to an injunction against future printing.

(B) Where the infringement or violation complained of is contained
in or is part of paid advertising matter in a newspaper, magazine, or
other similar periodical or in an electronic communication as defined in
section 2510(12) of title 18, the remedies of the owner of the right
infringed or person bringing the action under section 1125(a) of this
title as against the publisher or distributor of such newspaper,
magazine, or other similar periodical or electronic communication shall
be limited to an injunction against the presentation of such advertising
matter in future issues of such newspapers, magazines, or other similar
periodicals or in future transmissions of such electronic
communications. The limitations of this subparagraph shall apply only
to innocent infringers and innocent violators.

(C) Injunctive relief shall not be available to the owner of the
right infringed or person bringing the action under section 1125(a) of
this title with respect to an issue of a newspaper, magazine, or other
similar periodical or an electronic communication containing infringing
matter or violating matter where restraining the dissemination of such
infringing matter or violating matter in any particular issue of such
periodical or in an electronic communication would delay the delivery of
such issue or transmission of such electronic communication after the
regular time for such delivery or transmission, and such delay would be
due to the method by which publication and distribution of such
periodical or transmission of such electronic communication is
customarily conducted in accordance with sound business practice, and
not due to any method or device adopted to evade this section or to
prevent or delay the issuance of an injunction or restraining order with
respect to such infringing matter or violating matter.

(D) As used in this paragraph -
(i) the term "violator" means a person who violates section
1125(a) of this title; and
(ii) the term "violating matter" means matter that is the
subject of a violation under section 1125(a) of this title.

AMENDMENTS

1992 - Par. (1). Pub. L. 102-542 inserted at end "As used in this
subsection, the term 'any person' includes any State, any
instrumentality of a State, and any officer or employee of a State or
instrumentality of a State acting in his or her official capacity. Any
State, and any such instrumentality, officer, or employee, shall be
subject to the provisions of this chapter in the same manner and to the
same extent as any nongovernmental entity."

1988 - Par. (2). Pub. L. 100-667 amended par. (2) generally.
Prior to amendment, par. (2) read as follows: "Notwithstanding any
other provision of this chapter, the remedies given to the owner of the
right infringed shall be limited as follows: (a) Where an infringer in
engaged solely in the business of printing the mark for others and
establishes that he was an innocent infringer the owner of the right
infringed shall be entitled as against such infringer only to an
injunction against future printing; (b) where the infringement
complained of is contained in or is part of paid advertising matter in a
newspaper, magazine, or other similar periodical the remedies of the
owner of the right infringed as against the publisher or distributor of
such newspaper, magazine, or other similar periodical shall be confined
to an injunction against the presentation of such advertising matter in
future issues of such newspapers, magazines, or other similar
periodical:

Provided, That these limitations shall apply only to innocent
infringers; (c) injunction relief shall not be available to the owner of
the right infringed in respect of an issue of a newspaper, magazine, or
other similar periodical containing infringing matter when restraining
the dissemination of such infringing matter in any particular issue of
such periodical would delay the delivery of such issue after the regular
time therefor, and such delay would be due to the method by which
publication and distribution of such periodical is customarily conducted
in accordance with sound business practice, and not to any method or
device adopted for the evasion of this section or to prevent or delay
the issuance of an injunction or restraining order with respect to such
infringing matter."

1962 - Par. (1). Pub. L. 87-772 amended provisions generally, and
among other changes, inserted "distribution", and struck out
"purchasers as to the source of origin of such goods or services"
after "or to deceive" in subsec. (a), inserted provisions regarding
the likelihood of such use causing confusion, mistake, or deception, in
subsec. (b), and struck out the limitation on recovery under subsec. (b)
to acts committed with knowledge that such acts would deceive
purchasers.
Par. (2)(b). Pub. L. 87-772 substituted "publisher" for
"published".

Sec. 1115. Registration On Principal Register As Evidence Of Exclusive
Right To Use Mark; Defenses

(a) Evidentiary value; defenses

Any registration issued under the Act of March 3, 1881, or the Act of
February 20, 1905, or of a mark registered on the principal register
provided by this chapter and owned by a party to an action shall be
admissible in evidence and shall be prima facie evidence of the validity
of the registered mark and of the registration of the mark, of the
registrant's ownership of the mark, and of the registrant's exclusive
right to use the registered mark in commerce on or in connection with
the goods or services specified in the registration subject to any
conditions or limitations stated therein, but shall not preclude another
person from proving any legal or equitable defense or defect, including
those set forth in subsection (b) of this section, which might have been
asserted if such mark had not been registered.

(b) Incontestability; defenses

To the extent that the right to use the registered mark has become
incontestable under section 1065 of this title, the registration shall
be conclusive evidence of the validity of the registered mark and of the
registration of the mark, of the registrant's ownership of the mark, and
of the registrant's exclusive right to use the registered mark in
commerce. Such conclusive evidence shall relate to the exclusive right
to use the mark on or in connection with the goods or services specified
in the affidavit filed under the provisions of section 1065 of this
title, or in the renewal application filed under the provisions of
section 1059 of this title if the goods or services specified in the
renewal are fewer in number, subject to any conditions or limitations in
the registration or in such affidavit or renewal application. Such
conclusive evidence of the right to use the registered mark shall be
subject to proof of infringement as defined in section 1114 of this
title, and shall be subject to the following defenses or defects:

(1) That the registration or the incontestable right to use the
mark was obtained fraudulently; or

(2) That the mark has been abandoned by the registrant; or

(3) That the registered mark is being used by or with the
permission of the registrant or a person in privity with the registrant,
so as to misrepresent the source of the goods or services on or in
connection with which the mark is used; or

(4) That the use of the name, term, or device charged to be an
infringement is a use, otherwise than as a mark, of the party's
individual name in his own business, or of the individual name of anyone
in privity with such party, or of a term or device which is descriptive
of and used fairly and in good faith only to describe the goods or
services of such party, or their geographic origin; or

(5) That the mark whose use by a party is charged as an
infringement was adopted without knowledge of the registrant's prior use
and has been continuously used by such party or those in privity with
him from a date prior to (A) the date of constructive use of the mark
established pursuant to section 1057(c) of this title, (B) the
registration of the mark under this chapter if the application for
registration is filed before the effective date of the Trademark Law
Revision Act of 1988, or (C) publication of the registered mark under
subsection (c) of section 1062 of this title: Provided, however, That
this defense or defect shall apply only for the area in which such
continuous prior use is proved; or

(6) That the mark whose use is charged as an infringement was
registered and used prior to the registration under this chapter or
publication under subsection (c) of section 1062 of this title of the
registered mark of the registrant, and not abandoned:

Provided, however, That this defense or defect shall apply only for
the area in which the mark was used prior to such registration or such
publication of the registrant's mark; or

(7) That the mark has been or is being used to violate the
antitrust laws of the United States; or

(8) That equitable principles, including laches, estoppel, and
acquiescence, are applicable.

The antitrust laws, referred to in subsec. (b)(7), are classified
generally to chapter 1 (Sec. 1 et seq.) of this title.

AMENDMENTS

1988 - Subsec. (a). Pub. L. 100-667, Sec. 128(a), inserted "the
validity of the registered mark and of the registration of the mark, of
the registrant's ownership of the mark, and of the" after "facie
evidence of", inserted "or in connection with" after "in commerce
on", substituted "another person" for "an opposing party", and
inserted ", including those set forth in subsection (b) of this
section," after "or defect".
Subsec. (b). Pub. L. 100-667, Sec. 128(b)(1), amended introductory
provisions generally. Prior to amendment, introductory provisions read
as follows: "If the right to use the registered mark has become
incontestable under section 1065 of this title, the registration shall
be conclusive evidence of the registrant's exclusive right to use the
registered mark in commerce on or in connection with the goods or
services specified in the affidavit filed under the provisions of said
section 1065 subject to any conditions or limitations stated therein
except when one of the following defenses or defects is established:".
Subsec. (b)(3). Pub. L. 100-667, Sec. 128(b)(2), inserted "on or"
after "goods or services".
Subsec. (b)(4). Pub. L. 100-667, Sec. 128(b)(3), struck out "trade
or service" after "than as a" and "to users" after "only to
describe".
Subsec. (b)(5). Pub. L. 100-667, Sec. 128(b)(4), substituted "(A)
the date of constructive use of the mark established pursuant to section
1057(c) of this title, (B) the registration of the mark under this
chapter if the application for registration is filed before the
effective date of the Trademark Law Revision Act of 1988, or (C)" for
"registration of the mark under this chapter or".
Subsec. (b)(8). Pub. L. 100-667, Sec. 128(b)(5), (6), added par.
(8).

1962 - Subsec. (a). Pub. L. 87-772 substituted "registration
subject to" for "certificate subject to", and struck out
"certificate of" before "registration issued".
Subsec. (b). Pub. L. 87-772 substituted "registration shall" for
"certificate shall", and "affidavit filed under the provisions of
said section 1065" for "certificate" in text preceding par. (1),
substituted "registrant or a person in privity with the registrant,"
for "assignee", and struck out "has been assigned and" after
"registered mark" in par. (3), substituted "registration of the mark
under this chapter or" for "the", and struck out "(a) or" before
"(c) of section 1062" in par. (5), inserted "registration under this
chapter", substituted "such registration or such" for "the date
of", and struck out "(a) or" before "(c) of section 1062", "only
where the said mark has been published pursuant to subsections (c) of
section 1062 of this title and shall apply" after "defect shall
apply", and "under subsection (a) or (c) of section 1062 of this
title" after "registrant's mark", in par. (6).

Sec. 1116. Injunctive Relief

(a) Jurisdiction; service

The several courts vested with jurisdiction of civil actions arising
under this chapter shall have power to grant injunctions, according to
the principles of equity and upon such terms as the court may deem
reasonable, to prevent the violation of any right of the registrant of a
mark registered in the Patent and Trademark Office or to prevent a
violation under section 1125(a) of this title. Any such injunction may
include a provision directing the defendant to file with the court and
serve on the plaintiff within thirty days after the service on the
defendant of such injunction, or such extended period as the court may
direct, a report in writing under oath setting forth in detail the
manner and form in which the defendant has complied with the injunction.
Any such injunction granted upon hearing, after notice to the defendant,
by any district court of the United States, may be served on the parties
against whom such injunction is granted anywhere in the United States
where they may be found, and shall be operative and may be enforced by
proceedings to punish for contempt, or otherwise, by the court by which
such injunction was granted, or by any other United States district
court in whose jurisdiction the defendant may be found.

(b) Transfer of certified copies of court papers The said courts shall
have jurisdiction to enforce said injunction, as provided in this
chapter, as fully as if the injunction had been granted by the district
court in which it is sought to be enforced. The clerk of the court or
judge granting the injunction shall, when required to do so by the court
before which application to enforce said injunction is made, transfer
without delay to said court a certified copy of all papers on file in
his office upon which said injunction was granted.

(c) Notice to Commissioner

It shall be the duty of the clerks of such courts within one month after
the filing of any action, suit, or proceeding involving a mark
registered under the provisions of this chapter to give notice thereof
in writing to the Commissioner setting forth in order so far as known
the names and addresses of the litigants and the designating number or
numbers of the registration or registrations upon which the action,
suit, or proceeding has been brought, and in the event any other
registration be subsequently included in the action, suit, or proceeding
by amendment, answer, or other pleading, the clerk shall give like
notice thereof to the Commissioner, and within one month after the
judgment is entered or an appeal is taken the clerk of the court shall
give notice thereof to the Commissioner, and it shall be the duty of the
Commissioner on receipt of such notice forthwith to endorse the same
upon the file wrapper of the said registration or registrations and to
incorporate the same as a part of the contents of said file wrapper.

(d) Civil actions arising out of use of counterfeit marks (1)(A) In
the case of a civil action arising under section 1114(1)(a) of this
title or section 380 of title 36 with respect to a violation that
consists of using a counterfeit mark in connection with the sale,
offering for sale, or distribution of goods or services, the court may,
upon ex parte application, grant an order under subsection (a) of this
section pursuant to this subsection providing for the seizure of goods
and counterfeit marks involved in such violation and the means of making
such marks, and records documenting the manufacture, sale, or receipt of
things involved in such violation.

(B) As used in this subsection the term "counterfeit mark" means -
(i) a counterfeit of a mark that is registered on the principal
register in the United States Patent and Trademark Office for such goods
or services sold, offered for sale, or distributed and that is in use,
whether or not the person against whom relief is sought knew such mark
was so registered; or
(ii) a spurious designation that is identical with, or
substantially indistinguishable from, a designation as to which the
remedies of this chapter are made available by reason of section 380 of
title 36; but such term does not include any mark or designation used on
or in connection with goods or services of which the manufacture or
producer was, at the time of the manufacture or production in question
authorized to use the mark or designation for the type of goods or
services so manufactured or produced, by the holder of the right to use
such mark or designation.

(2) The court shall not receive an application under this subsection
unless the applicant has given such notice of the application as is
reasonable under the circumstances to the United States attorney for the
judicial district in which such order is sought. Such attorney may
participate in the proceedings arising under such application if such
proceedings may affect evidence of an offense against the United States.
The court may deny such application if the court determines that the
public interest in a potential prosecution so requires.

(3) The application for an order under this subsection shall -
(A) be based on an affidavit or the verified complaint
establishing facts sufficient to support the findings of fact and
conclusions of law required for such order; and
(B) contain the additional information required by paragraph

(5) of this subsection to be set forth in such order.

(4) The court shall not grant such an application unless -

(A) the person obtaining an order under this subsection provides
the security determined adequate by the court for the payment of such
damages as any person may be entitled to recover as a result of a
wrongful seizure or wrongful attempted seizure under this subsection;
and

(B) the court finds that it clearly appears from specific facts
that -
(i) an order other than an ex parte seizure order is not
adequate to achieve the purposes of section 1114 of this title;
(ii) the applicant has not publicized the requested seizure;
(iii) the applicant is likely to succeed in showing that the
person against whom seizure would be ordered used a counterfeit mark in
connection with the sale, offering for sale, or distribution of goods or
services;
(iv) an immediate and irreparable injury will occur if such
seizure is not ordered;
(v) the matter to be seized will be located at the place
identified in the application;
(vi) the harm to the applicant of denying the application
outweighs the harm to the legitimate interests of the person against
whom seizure would be ordered of granting the application; and
(vii) the person against whom seizure would be ordered, or
persons acting in concert with such person, would destroy, move, hide,
or otherwise make such matter inaccessible to the court, if the
applicant were to proceed on notice to such person.

(5) An order under this subsection shall set forth -
(A) the findings of fact and conclusions of law required for the
order;
(B) a particular description of the matter to be seized, and a
description of each place at which such matter is to be seized;
(C) the time period, which shall end not later than seven days
after the date on which such order is issued, during which the seizure
is to be made;
(D) the amount of security required to be provided under this
subsection; and
(E) a date for the hearing required under paragraph (10) of this
subsection.

(6) The court shall take appropriate action to protect the person
against whom an order under this subsection is directed from publicity,
by or at the behest of the plaintiff, about such order and any seizure
under such order.

(7) Any materials seized under this subsection shall be taken into
the custody of the court. The court shall enter an appropriate
protective order with respect to discovery by the applicant of any
records that have been seized. The protective order shall provide for
appropriate procedures to assure that confidential information contained
in such records is not improperly disclosed to the applicant.

(8) An order under this subsection, together with the supporting
documents, shall be sealed until the person against whom the order is
directed has an opportunity to contest such order, except that any
person against whom such order is issued shall have access to such order
and supporting documents after the seizure has been carried out.

(9) The court shall order that a United States marshal or other law
enforcement officer is to serve a copy of the order under this
subsection and then is to carry out the seizure under such order. The
court shall issue orders, when appropriate, to protect the defendant
from undue damage from the disclosure of trade secrets or other
confidential information during the course of the seizure, including,
when appropriate, orders restricting the access of the applicant (or any
agent or employee of the applicant) to such secrets or information.

(10)(A) The court shall hold a hearing, unless waived by all the
parties, on the date set by the court in the order of seizure. That
date shall be not sooner than ten days after the order is issued and not
later than fifteen days after the order is issued, unless the applicant
for the order shows good cause for another date or unless the party
against whom such order is directed consents to another date for such
hearing. At such hearing the party obtaining the order shall have the
burden to prove that the facts supporting findings of fact and
conclusions of law necessary to support such order are still in effect.
If that party fails to meet that burden, the seizure order shall be
dissolved or modified appropriately.

(B) In connection with a hearing under this paragraph, the court may
make such orders modifying the time limits for discovery under the Rules
of Civil Procedure as may be necessary to prevent the frustration of the
purposes of such hearing.

(11) A person who suffers damage by reason of a wrongful seizure
under this subsection has a cause of action against the applicant for
the order under which such seizure was made, and shall be entitled to
recover such relief as may be appropriate, including damages for lost
profits, cost of materials, loss of good will, and punitive damages in
instances where the seizure was sought in bad faith, and, unless the
court finds extenuating circumstances, to recover a reasonable
attorney's fee. The court in its discretion may award prejudgment
interest on relief recovered under this paragraph, at an annual interest
rate established under section 6621 of title 26, commencing on the date
of service of the claimant's pleading setting forth the claim under this
paragraph and ending on the date such recovery is granted, or for such
shorter time as the court deems appropriate.

(a) When a violation of any right of the registrant of a mark registered
in the Patent and Trademark Office, or a violation under section 1125(a)
of this title, shall have been established in any civil action arising
under this chapter, the plaintiff shall be entitled, subject to the
provisions of sections 1111 and 1114 of this title, and subject to the
principles of equity, to recover (1) defendant's profits, (2) any
damages sustained by the plaintiff, and (3) the costs of the action.
The court shall assess such profits and damages or cause the same to be
assessed under its direction. In assessing profits the plaintiff shall
be required to prove defendant's sales only; defendant must prove all
elements of cost or deduction claimed. In assessing damages the court
may enter judgment, according to the circumstances of the case, for any
sum above the amount found as actual damages, not exceeding three times
such amount. If the court shall find that the amount of the recovery
based on profits is either inadequate or excessive the court may in its
discretion enter judgment for such sum as the court shall find to be
just, according to the circumstances of the case. Such sum in either of
the above circumstances shall constitute compensation and not a penalty.
The court in exceptional cases may award reasonable attorney fees to the
prevailing party.

(b) In assessing damages under subsection (a) of this section, the court
shall, unless the court finds extenuating circumstances, enter judgment
for three times such profits or damages, whichever is greater, together
with a reasonable attorney's fee, in the case of any violation of
section 1114(1)(a) of this title or section 380 of title 36 that
consists of intentionally using a mark or designation, knowing such mark
or designation is a counterfeit mark (as defined in section 1116(d) of
this title), in connection with the sale, offering for sale, or
distribution of goods or services. In such cases, the court may in its
discretion award prejudgment interest on such amount at an annual
interest rate established under section 6621 of title 26, commencing on
the date of the service of the claimant's pleadings setting forth the
claim for such entry and ending on the date such entry is made, or for
such shorter time as the court deems appropriate.

Sec. 1121. Jurisdiction Of Federal Courts; State And Local Requirements
That Registered Trademarks Be Altered Or Displayed Differently;
Prohibition

(a) The district and territorial courts of the United States shall
have original jurisdiction and the courts of appeal of the United States
(other than the United States Court of Appeals for the Federal Circuit)
shall have appellate jurisdiction, of all actions arising under this
chapter, without regard to the amount in controversy or to diversity or
lack of diversity of the citizenship of the parties.

(b) No State or other jurisdiction of the United States or any
political subdivision or any agency thereof may require alteration of a
registered mark, or require that additional trademarks, service marks,
trade names, or corporate names that may be associated with or
incorporated into the registered mark be displayed in the mark in a
manner differing from the display of such additional trademarks, service
marks, trade names, or corporate names contemplated by the registered
mark as exhibited in the certificate of registration issued by the
United States Patent and Trademark Office.

Sec. 1127. Construction And Definitions; Intent Of Chapter

In the construction of this chapter, unless the contrary is plainly
apparent from the context -

The United States includes and embraces all territory which is under
its jurisdiction and control.

The word "commerce" means all commerce which may lawfully be
regulated by Congress.

The term "principal register" refers to the register provided for
by sections 1051 to 1072 of this title, and the term "supplemental
register" refers to the register provided for by sections 1091 to 1096
of this title.

The term "person" and any other word or term used to designate the
applicant or other entitled to a benefit or privilege or rendered liable
under the provisions of this chapter includes a juristic person as well
as a natural person. The term "juristic person" includes a firm,
corporation, union, association, or other organization capable of suing
and being sued in a court of law.

The term "person" also includes any State, any instrumentality of
a State, and any officer or employee of a State or instrumentality of a
State acting in his or her official capacity. Any State, and any such
instrumentality, officer, or employee, shall be subject to the
provisions of this chapter in the same manner and to the same extent as
any nongovernmental entity.

The terms "applicant" and "registrant" embrace the legal
representatives, predecessors, successors and assigns of such applicant
or registrant.

The term "Commissioner" means the Commissioner of Patents and
Trademarks.

The term "related company" means any person whose use of a mark is
controlled by the owner of the mark with respect to the nature and
quality of the goods or services on or in connection with which the mark
is used.

The terms "trade name" and "commercial name" mean any name used
by a person to identify his or her business or vocation.

The term "trademark" includes any word, name, symbol, or device,
or any combination thereof -
(1) used by a person, or
(2) which a person has a bona fide intention to use in commerce
and applies to register on the principal register established by this
chapter, to identify and distinguish his or her goods, including a
unique product, from those manufactured or sold by others and to
indicate the source of the goods, even if that source is unknown.

The term "service mark" means any word, name, symbol, or device,
or any combination thereof -
(1) used by a person, or
(2) which a person has a bona fide intention to use in commerce
and applies to register on the principal register established by this
chapter, to identify and distinguish the services of one person,
including a unique service, from the services of others and to indicate
the source of the services, even if that source is unknown. Titles,
character names, and other distinctive features of radio or television
programs may be registered as service marks notwithstanding that they,
or the programs, may advertise the goods of the sponsor.

The term "certification mark" means any word, name, symbol, or
device, or any combination thereof -
(1) used by a person other than its owner, or
(2) which its owner has a bona fide intention to permit a person
other than the owner to use in commerce and files an application to
register on the principal register established by this chapter, to
certify regional or other origin, material, mode of manufacture,
quality, accuracy, or other characteristics of such person's goods or
services or that the work or labor on the goods or services was
performed by members of a union or other organization.

The term "collective mark" means a trademark or service mark -

(1) used by the members of a cooperative, an association, or other
collective group or organization, or
(2) which such cooperative, association, or other collective group
or organization has a bona fide intention to use in commerce and applies
to register on the principal register established by this chapter, and
includes marks indicating membership in a union, an association, or
other organization.

The term "mark" includes any trademark, service mark, collective
mark, or certification mark.

The term "use in commerce" means the bona fide use of a mark in
the ordinary course of trade, and not made merely to reserve a right in
a mark. For purposes of this chapter, a mark shall be deemed to be in
use in commerce -

(1) on goods when -
(A) it is placed in any manner on the goods or their containers
or the displays associated therewith or on the tags or labels affixed
thereto, or if the nature of the goods makes such placement
impracticable, then on documents associated with the goods or their
sale, and
(B) the goods are sold or transported in commerce, and
(2) on services when it is used or displayed in the sale or
advertising of services and the services are rendered in commerce, or
the services are rendered in more than one State or in the United States
and a foreign country and the person rendering the services is engaged
in commerce in connection with the services.

A mark shall be deemed to be "abandoned" when either of the
following occurs:
(1) When its use has been discontinued with intent not to resume
such use. Intent not to resume may be inferred from circumstances.
Nonuse for two consecutive years shall be prima facie evidence of
abandonment. "Use" of a mark means the bona fide use of that mark made
in the ordinary course of trade, and not made merely to reserve a right
in a mark.
(2) When any course of conduct of the owner, including acts of
omission as well as commission, causes the mark to become the generic
name for the goods or services on or in connection with which it is used
or otherwise to lose its significance as a mark. Purchaser motivation
shall not be a test for determining abandonment under this paragraph.

The term "colorable imitation" includes any mark which so
resembles a registered mark as to be likely to cause confusion or
mistake or to deceive.

The term "registered mark" means a mark registered in the United
States Patent and Trademark Office under this chapter or under the Act
of March 3, 1881, or the Act of February 20, 1905, or the Act of March
19, 1920. The phrase "marks registered in the Patent and Trademark
Office" means registered marks.

The term "Act of March 3, 1881", "Act of February 20, 1905", or
"Act of March 19, 1920", means the respective Act as amended.

A "counterfeit" is a spurious mark which is identical with, or
substantially indistinguishable from, a registered mark.

Words used in the singular include the plural and vice versa.

The intent of this chapter is to regulate commerce within the
control of Congress by making actionable the deceptive and misleading
use of marks in such commerce; to protect registered marks used in such
commerce from interference by State, or territorial legislation; to
protect persons engaged in such commerce against unfair competition; to
prevent fraud and deception in such commerce by the use of
reproductions, copies, counterfeits, or colorable imitations of
registered marks; and to provide rights and remedies stipulated by
treaties and conventions respecting trade-marks, trade names, and unfair
competition entered into between the United States and foreign nations.

AMENDMENT OF SECTION

Pub. L. 103-465, title V, Sec. 521, 523, Dec. 8, 1994, 108 Stat. 4981,
4982, provided that, effective one year after the date on which the WTO
Agreement enters into force with respect to the United States (Jan. 1,
1995), this section is amended by amending the par. defining
"abandoned" to read as follows:

A mark shall be deemed to be "abandoned" if either of the
following occurs:
(1) When its use has been discontinued with intent not to resume
such use. Intent not to resume may be inferred from circumstances.
Nonuse for 3 consecutive years shall be prima facie evidence of
abandonment. "Use" of a mark means the bona fide use of such mark made
in the ordinary course of trade, and not made merely to reserve a right
in a mark.
(2) When any course of conduct of the owner, including acts of
omission as well as commission, causes the mark to become the generic
name for the goods or services on or in connection with which it is used
or otherwise to lose its significance as a mark. Purchaser motivation
shall not be a test for determining abandonment under this paragraph.

AMENDMENTS

1992 - Pub. L. 102-542 inserted after fourth undesignated paragraph
"The term 'person' also includes any State, any instrumentality of a
State, and any officer or employee of a State or instrumentality of a
State acting in his or her official capacity. Any State, and any such
instrumentality, officer, or employee, shall be subject to the
provisions of this chapter in the same manner and to the same extent as
any nongovernmental entity."

1988 - Pub. L. 100-667, Sec. 134(1), amended par. defining "related
company" generally. Prior to amendment, par. read as follows: "The
term 'related company' means any person who legitimately controls or is
controlled by the registrant or applicant for registration in respect to
the nature and quality of the goods or services in connection with which
the mark is used."

Pub. L. 100-667, Sec. 134(2), amended par. defining "trade name" and
"commercial name" generally. Prior to amendment, par. read as
follows: "The terms 'trade name' and 'commercial name' include
individual names and surnames, firm names and trade names used by
manufacturers, industrialists, merchants, agriculturists, and others to
identify their businesses, vocations, or occupations; the names or
titles lawfully adopted and used by persons, firms, associations,
corporations, companies, unions, and any manufacturing, industrial,
commercial, agricultural, or other organizations engaged in trade or
commerce and capable of suing and being sued in a court of law."

Pub. L. 100-667, Sec. 134(3), amended par. defining "trademark"
generally. Prior to amendment, par. read as follows: "The term
'trademark' includes any word, name, symbol, or device or any
combination thereof adopted and used by a manufacturer or merchant to
identify and distinguish his goods, including a unique product, from
those manufactured or sold by others and to indicate the source of the
goods, even if that source is unknown."

Pub. L. 100-667, Sec. 134(4), amended par. defining "service mark"
generally. Prior to amendment, par. read as follows: "The term
'service mark' means a mark used in the sale or advertising of services
to identify and distinguish the services of one person, including a
unique service, from the services of others and to indicate the source
of the services, even if that source is unknown. Titles, character
names and other distinctive features of radio or television programs may
be registered as service marks notwithstanding that they, or the
programs, may advertise the goods of the sponsor."

Pub. L. 100-667, Sec. 134(5), amended par. defining "certification
mark" generally. Prior to amendment, par. read as follows: "The term
'certification mark' means a mark used upon or in connection with the
products or services of one or more persons other than the owner of the
mark to certify regional or other origin, material, mode of manufacture,
quality, accuracy or other characteristics of such goods or services or
that the work or labor on the goods or services was performed by members
of a union or other organization."

Pub. L. 100-667, Sec. 134(6), amended par. defining "collective mark"
generally. Prior to amendment, par. read as follows: "The term
'collective mark' means a trade-mark or service mark used by the members
of a cooperative, an association or other collective group or
organization and includes marks used to indicate membership in a union,
an association or other organization."

Pub. L. 100-667, Sec. 134(7), amended par. defining "mark" generally.
Prior to amendment, par. read as follows: "The term 'mark' includes any
trade-mark, service mark, collective mark, or certification mark
entitled to registration under this chapter whether registered or not."

Pub. L. 100-667, Sec. 134(8), substituted par. defining "use in
commerce" for former par. which read as follows: "For the purposes of
this chapter a mark shall be deemed to be used in commerce (a) on goods
when it is placed in any manner on the goods or their containers or the
displays associated therewith or on the tags or labels affixed thereto
and the goods are sold or transported in commerce and (b) on services
when it is used or displayed in the sale or advertising of services and
the services are rendered in commerce, or the services are rendered in
more than one State or in this and a foreign country and the person
rendering the services is engaged in commerce in connection therewith."
and par. providing when a mark is deemed abandoned for former par. which
read as follows: "A mark shall be deemed to be 'abandoned' -
"(a) When its use has been discontinued with intent not to resume.
Intent not to resume may be inferred from circumstances. Nonuse for two
consecutive years shall be prima facie abandonment.
"(b) When any course of conduct of the registrant, including acts
of omission as well as commission, causes the mark to lose its
significance as an indication of origin. Purchaser motivation shall not
be a test for determining abandonment under this subparagraph."

1984 - Pub. L. 98-620, Sec. 103(1), in definition of "trademark"
substituted "trademark" for "trade-mark", and substituted "identify
and distinguish his goods, including a unique product, from those
manufactured or sold by others and to indicate the source of the goods,
even if that source is unknown" for "identify his goods and
distinguish them from those manufactured or sold by others".

Pub. L. 98-620, Sec. 103(2), in definition of "service mark"
substituted "The term 'service mark' means a mark used in the sale or
advertising of services to identify and distinguish the services of one
person, including a unique service, from the services of others and to
indicate the source of the services, even if that source is unknown"
for "The term 'service mark' means a mark used in the sale or
advertising of services to identify the services of one person and
distinguish them from the services of others".

Pub. L. 98-620, Sec. 103(3), in subpar. (b) of par. relating to when a
mark shall be deemed to be "abandoned", inserted "Purchaser
motivation shall not be a test for determining abandonment under this
subparagraph."

1975 - Pub. L. 93-596 substituted "Patent and Trademark Office" for
"Patent Office" in two places and "Commissioner of Patents and
Trademarks" for "Commissioner of Patents" in definition of
"Commissioner".

1962 - Pub. L. 87-772 substituted, "predecessors," for "and" in
definition of "applicant" and "registrant", "Titles, character
names and other distinctive features of radio or television programs may
be registered as service marks notwithstanding that they, or the
programs, may advertise the goods of the sponsor" for "and includes
without limitation the marks, names, symbols, titles, designations,
slogans, character names, and distinctive features of radio or other
advertising used in commerce", in definition of "service mark",
inserted "or the services are rendered in more than one State or in
this and a foreign country and the person rendering the services is
engaged in commerce in connection therewith" in fifteenth paragraph
relating to use in commerce, struck out "purchasers" after "deceive"
in definition of "colorable imitation", and substituted "commerce"
for "commence" in last paragraph relating to the intent of the
chapter.

EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103-465 effective
one year after the date on which the WTO Agreement enters into force
with respect to the United States (Jan. 1, 1995).

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